Shankara Bhat vs Bheema Bhat and Another

Range Gowda, J.—The question raised in this revision petition is whether a party to a suit has a right under Rule 17 of Order 18, CPC (hereinafter referred to as Rule 17), to recall a witness for the purpose of further examining, cross-examining or reexamining, and that question arises in the following circumstances: The petitioner and the first respondent are brothers and the second respondent is the minor son of the first respondent. On 24-8-1966 the petitioner, the first respondent and their father Thimmanna Bhat divided their family properties under a registered partition deed (Ex. P-2) of even date, and one of the terms in that partition deed was that the said Thimmanna Bhat was entitled to collect by way of ''owelty'' 520 Kgs. of arecanut from the petitioner and the first respondent. Then Thimmanna Bhat bequeathed his right to collect ''owelty'', after his death, from the first respondent in favour of the petitioner under a will, Ext. P-1.

After the death of the said Thimmanna Bhat, the petitioner filed a suit against the respondents in O.S. No. 133 of 1970 on the file of the Munsiff at Buntwal, South Kanara, for recovery of the value in cash of the ''owelty''. The respondents resisted that suit and inter alia contended that the right given to Thimmanna Bhat to collect by way of ''owelty'' 520 Kgs. of arecanut was not a heritable right and that he was entitled to the same only during his lifetime, and it is unnecessary to refer to his other contentions.

In view of the stand taken by the respondents, one of the issues framed in that suit was whether Thimmanna Bhat had a heritable right to collect ''owelty'' so as to bequeath the same. The respondents in support of their case, examined one Shanker as D.W. 2 who is one of the attestors of the partition deed Ext. P-2. Long after his evidence was recorded the first respondent filed an application, I.A. VI, u/s 151. CPC to recall D.W. 2 for the purpose of further examining him; what was stated in that application was that though D.W. 2 deposed in his evidence that Thimmanna Bhat was entitled to collect ''owelty'' during his lifetime, that fact does not find a place in his deposition and that it was hence necessary to further examine him to elicit that fact for a just decision of the case.

The petitioner resisted that application and denied that D.W. 2 deposed to the said fact in the course of his evidence. He contended that the prayer made in I.A. VI was misconceived and untenable.

The learned Munsiff declined to accept the version of the first respondent viz., that D.W. 2 deposed to the said fact, and in so declining this is what he stated in the impugned order:

The notes of the examination in chief of D.W. 2 made by Sri K.K. Bhat during D.W. 2''s evidence do not disclose that D.W. 2 stated in his examination in chief that the owelty was payable only during the lifetime of Thimmanna Bhat. Under these circumstances, I see no force in the contention that the material point on which D.W. 2 spoke during his evidence has been accidentally omitted by the Court while recording his evidence.

Despite taking that view, he allowed I.A. VI on the ground that the said fact might not have been elicited from D.W. 2 due to inadvertence and he should be permitted to elicit the same. However, in allowing that application and in passing the impugned order which is extracted below, the view he took was that the right to recall a witness for the purpose of further examining, cross-examining or re-examining is traceable to Rule 17 and not to Section 151, Civil Procedure Code.

I.A. No. 6 is allowed and the defendants are permitted to recall and examine D.W. 2 subject to the condition that they pay costs of Rs. 40/- to the plaintiff by the next date of hearing. The plaintiff is allowed to further cross-examine D.W. 2.

The said order is attacked by Sri Ganapathi Bhat learned Counsel for the petitioner on two grounds. Firstly it was contended by him that under Rule 17 it is only the Court which can suo motu recall a witness if it considers it necessary and that neither party to a suit has any such right or can move the Court to do so. Secondly, it was contended that when a witness is recalled under Rule 17, it is only the Court that can put questions to him and neither party has any right to examine, cross-examine or reexamine the witness so recalled, and that in the instant case the learned Munsiff in passing the impugned order permitting D.W. 2 to be further examined and cross-examined by the parties has exercised jurisdiction not vested in him by law and as such the impugned order is clearly illegal and is liable to be set aside.

Rule 17 on the basis of which the said two contentions are advanced reads thus:

The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) nut such questions to him as the Court thinks fit.

On a close reading of the said rule, it is difficult to accede to the contention that under that rule it is only the Court that can suo motu recall a witness and not at the instance of a party. The words of the said Rule do not suggest that there is any such restriction either on the power of the Court or on the right of a party to recall a witness, and in my opinion, either the Court on its own, motion or at the instance of the party can recall a witness under the said rule and there is no warrant for the proposition that it is only the Court that can sou motu act under that rule. A similar view has been taken in Madhubhai Amthalal Vs. Amthalal Nanalal, and the relevant portion reads thus:

Mr. Banaji has argued that the right of the Court to act under that rule is restricted to action of its own motion and that neither party has a right even to invite the Court so to act. I do not see any such fetter on the powers of the party or on those of the Court................I think that either the litigant can ask the Court to act under Order 18 Rule 17 or that the Court can do it of its own motion.

Even in Sultan Saleh Bin Omer Vs. Vijayachand Sirimal, the same view has been taken and the relevant portion therein reads thus:

The right to act under this Rule is not restricted to the Court on its own motion but may be exercised at the instance of a party.

It must, therefore, be said that the first contention of Sri Ganapathi Bhat is devoid of force and must fail.

However, the said rule, in my opinion, makes it abundantly clear that the right to put questions to the witness recalled under Rule 17 is given only to the Court and even cross-examination is not ordinarily permitted on the answers given to such questions, without the leave of the Court. Under that rule therefore, a witness cannot be recalled at the instance of a party for the purpose of examining, cross-examining, or reexamining, and that rule is not intended to serve such purpose, and the purpose for which that rule can be invoked is the one that is indicated above. Therefore, the contention of Sri Ganapathi Bhat that an opportunity to a party to recall a witness for the purpose of examining, cross-examining or re-examining is not governed by Rule 17 is well founded. In this connection, I may also refer to the following observations in Sultan Saleh Bin Omer Vs. Vijayachand Sirimal, which accords with the above view:

A close reading of this rule makes it obvious that the right under that Rule to put question at any stage of a suit, or recall any witness for that purpose, is given to the Court. The Court can put questions to the witness recalled, and no cross-examination is ordinarily allowed upon the answers to the questions put by the Judge without leave...... It cannot therefore be said that an opportunity to a party to recall any witness for the purpose of examining, cross-examining or reexamining is governed by Order 18, Rule 17 CPC...............

The learned Munsiff, therefore, when acting under Rule 17, was clearly in error in passing the impugned order permitting the respondents and the petitioner respectively to examine and cross-examine D.W. 2. If, however, the circumstances warranted that an opportunity should have been given to the respondents to recall D.W. 2 for the purpose of further examining, the learned Munsif could have granted that opportunity in exercise of his inherent jurisdiction u/s 151 C.P.C. But, it is obvious that the learned Munsiff did not think that he had such power under that section and could act thereunder, and, on an erroneous view proceeded to think that under Rule 17 he had that power. It is this confusion in his mind in understanding the true scope of the provisions of Section 151, CPC and Rule 17, that led him to pass the impugned order. It was therefore submitted by Sri Ganapathi Bhat that under that rule the only order the learned Munsiff could have made was to recall D.W. 2 for the purpose of putting some questions by him with regard to the said fact, if he considered it necessary, and even on the facts of this case that was the only order that he could have made but not the impugned order permitting the respondents to examine D.W. 2 further. His argument was that the purpose for which D.W. 2 was sought to be recalled was to elicit the said fact viz., whether he deposed that Thimmanna Bhat was entitled to collect ''owelty'' during his lifetime, and that therefore the proper course was for the learned Munsiff to put relevant questions to him and not to permit the respondents to further examine him and at any rate under Rule 17 such an order was unwarranted. What he ultimately submitted was that if the learned Munsiff can be said to have exercised his discretion properly in recalling D.W. 2 under Rule 17, he can put such questions to him as are relevant to elicit the said fact, and the impugned order will have to be modified accordingly.

Since the learned Munsiff taking the view that due to inadvertence the respondents might not have elicited the said fact from D.W. 2 and the same is material, passed the order recalling him. I do not propose to interfere with the said discretionary order. However, the direction permitting D.W. 2 to be examined and cross-examined by the parties, cannot be upheld for the reasons already stated, and is hereby set aside. It is however open to the learned Munsiff to put such questions to D.W. 2 as he considers proper and necessary to elicit the fact which according to him, was not elicited due to inadvertence: it is also open to him to permit the petitioner-plaintiff to cross-examine D.W. 2 upon the answers given to his questions. The impugned order shall stand modified accordingly. However, the view expressed by the learned Munsiff regarding the effect of Sections 91 and 92 of the Evidence Act remains undisturbed. With the said modification, this revision petition is dismissed. No costs.